Monday, September 26, 2011

Troy Davis' Unconvincing Case for Actual Innocence

Troy Davis very probably shot and killed Mark MacPhail, a Savannah, Ga., police officer, in the early morning hours of Aug. 19, 1989, as MacPhail went to the aid of a homeless man being assaulted by Davis and two friends. That is the conclusion a dispassionate reader is quite likely to reach after reading the 172-page opinion by U.S. District Court Judge William T. Moore Jr. rejecting Davis’s claim of actual innocence of the murder for which he was convicted 20 years earlier. Davis’s actual-innocence claim drew nationwide attention and many thoughtful supporters during a long legal battle that ended with his execution by lethal injection late Wednesday evening [Sept. 21]. Now, many critics and opponents of capital punishment are hoping Davis’s case will get Americans to take a new look at the doubts about the way the death penalty is administered in the United States. Those doubts are familiar and well grounded. The death penalty is arbitrarily imposed, typically on the poor and virtually always on defendants with less than fully adequate legal representation. And there is the possibility that a wrongful conviction will lead to the execution of an innocent person. Davis’s case, however, adds little to most of these arguments, including the actual-innocence issue. The killing of a police officer  MacPhail was in uniform, moonlighting as a security guard  is one “special circumstance” that death penalty states use to define capital murder. The four-day trial and two-hour deliberation by a racially mixed jury were quicker, and the Georgia Supreme Court’s decision affirming the conviction and sentence shorter, than typical in other states. But no patent unfairness or constitutional error leaps out from the account of the trial and state appeal. Beginning in 1994, Davis and a succession of post-conviction lawyers waged a habeas corpus battle in state and then in federal court to gain a new trial by proving his innocence through newly gathered evidence. Two appellate courts, the Georgia Supreme Court and the Eleventh U.S. Circuit Court of Appeals, denied Davis a full hearing on the new evidence. When Davis filed an original habeas corpus petition with the U.S. Supreme Court, however, the justices took the extraordinary step of transferring the case to a federal district court judge for a full hearing. Dissenting, Justice Antonin Scalia said the court had done no such thing in the past 50 years. Moore was a Jimmy Carter-appointed U.S. attorney for four years before being appointed to the federal bench in 1994 by another Democratic president, Bill Clinton. He presided over a two-day hearing on Davis’s new evidence in June 2010. He gave Davis two favorable rulings on unsettled legal issues. First, Moore held squarely that the Constitution bars the execution of someone who can make a clear and convincing demonstration of actual innocence. Second, Moore held that a federal habeas court can re-evaluate an actual-innocence claim already considered by a state court. After carefully laying out the new evidence, however, Moore rejected it as “largely smoke and mirrors.” The supposed recantations by seven witnesses were “largely not credible or lacking in probative value,” he wrote in the opinion filed two months after the hearing. “The vast majority” of trial evidence, Moore said, “remains intact.” To be clear, Davis  age 21 at the time and known by the street name “Rough as Hell”  acknowledged on the stand being one of three men involved in the beating that MacPhail moved to break up. The only issue at trial was whether Davis or his friend, Sylvester “Red” Coles, shot and killed MacPhail as they fled the scene. The witnesses’ accounts pointed to Davis, not Coles, based in part on the clothes each was wearing. The accounts of the witnesses’ identifications and statements do not indicate suggestive procedures used by police. The victim of the beating, Larry Young, could not – and did not -- identify Davis as his assailant. The witnesses who did identify Davis as the shooter appear to have testified at trial without embellishing their accounts with newfound certainty. And the prosecution also had evidence of a statement Davis allegedly made to a friend that day confessing that he had shot MacPhail because the officer had seen his face and could identify him later. The recantations that Davis’s supporters emphasized in the days before the execution crumble under Moore’s examination. Of the seven witnesses, two did not actually say that they had lied in court. Two who had submitted affidavits, including Young, were not called as witnesses at the hearing. And two others Moore found simply unbelievable, including the friend who tried to retract his account of Davis’s confession. Moore accepted only one recantation: the jailhouse snitch who claimed that Davis confessed to the shooting. But Moore said the trial testimony was clearly fabricated  in effect, unlikely to have been a factor in the jury’s verdict. Jurors are told that a conviction requires proof beyond a reasonable doubt, but not beyond any doubt whatsoever. On that standard, the jury’s verdict appears valid, and Moore appears on solid ground in finding the new evidence insufficient to conclude that no rational juror would have convicted Davis with all the information available. Supporters of capital punishment believe that standard is good enough for administering the ultimate sanction, even at the risk that some concede of executing an innocent person. Some number of innocent people have surely been executed in the United States. But Troy Davis is probably not one of them.

About Me

Kenneth Jost is author of The Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and a contributing writer to CQ Researcher. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award and is an occasional analyst on national and local radio and television news programs.

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